The Owners Strata Plan 77450 v Deng

The on-site hearing

1. Mr Deng and about five Strata Plan owners attended the hearing, with Mrs Perryman nominated to represent the Owners.
2. The hearing commenced with both parties in the respondents' rear yard for an inspection of the tree. It is large and mature, with a broad spreading high canopy. While age is always difficult to estimate, 120 to 150 years may be conservative. It provides many important environmental services, and, along with other large Blue Gums nearby, is a key component of remnant 'Blue Gum High Forest'. The base of the tree was largely concealed by other foliage from this vantage.
3. The Court moved to the applicants' property, where the tree's trunk was more conspicuous. Its diameter is about two metres at ground level, with a largely circular, but irregular shape, typical of veteran trees. A recent survey marker nailed into the tree indicates that the boundary passes through the tree near the middle of the trunk.
4. The burden of proof lies with the applicant to prove, based on the balance of probability, that the tree in question is situated principally on the respondent's land Drolz v Sinclair [2008] NSWLEC 34. A survey diagram provided with the application, dated 27 November 2019, shows that about 60% of the tree base is in Mr Deng's property. As in Brown & anor v Weaver [2007] NSWLEC 738, when more than 50% of the base of the tree was located on the respondent's property, the tree should be regarded as being "situated…principally" on that property.
5. Though there is some ambiguity due to the irregular shape of the trunk base, to avoid the cost of a supplementary survey, in the interests of a just, cheap and quick resolution of this dispute, the Court accepted that the tree was predominantly on Mr Deng's land, with both parties agreement.
6. The Owners' apartments extend close to the tree base, and the canopy overhangs large areas of the roof, and some balconies. The tree is in good condition, particularly considering its maturity and recent harsh climatic conditions. It contains a moderate level of deadwood, some quite large, the removal of most of which would reduce risk to residents nearby and below.
7. The conditions which Mr Deng required (per letter 'n' dated 27 November 2018, attached to the Court application) are: 1. All related costs for the tree work, including for any related damage to his property, should be covered by the Owners; 2. The Application will be 'to trim the branches overhanging the roof of the rear units of the Owners' property and to remove deadwood on the western (Owners') side of the tree; 3. The works will be carried out by an Arborist approved by Council. Mr Deng acknowledged that access will be required via his property, and he reiterated that "all the Arborist's costs will be paid for by Strata Plan 77450; 4. Prior to the Pruning Application being submitted to Council, the Arborist who will do the job will provide a written warranty that the trimming works over the applicants' property will not affect the balance of the tree, which may cause the whole tree or major branches of the tree to fall down into his property; 5. My consent will lapse on 1 July 2019.
8. The Owners met conditions 1-3, and communicated this via a letter to Mr Deng dated 25 October 2018. They also supplied an amended quote from their selected arborist, which stated, "the tree trimming works of this tree as per this quotation will not affect the balance of the tree or cause the whole tree or major branches to fall into" (your property).
9. Mr Deng deemed this insufficient, as he considered the wording in the quote "not enough to constitute warranty", and he required a separate written warranty with the wording "I warrant or my company warrants…" Mr Deng advised the Owners to find another qualified arborist, if their current arborist would not meet this condition.
10. The Owners advised Mr Deng in a letter dated 13 February 2019 that they believed that the quote supplied by their designated arborist had covered his concerns, noted in Condition 4, and that it was unrealistic to shop around for another arborist. They noted that they therefore had no option other than to progress this matter with a Community Justice Centre (CJC).
11. The Owners proceeded to attempt to organise mediation through a CJC, but this was ignored by Mr Deng, so the Court application was lodged.
12. Informed by the arboricultural expertise I bring to the Court, Mr Deng accepted that the tree trimming works specified in the supplied quote will not affect the balance of the tree (notwithstanding that he had received incorrect advice to the contrary from a tree lopper), nor cause the whole tree or major branches to fall into his property. There is no obvious evidence that suggests the tree's stability in the ground is compromised, nor any major wounds, or reported history of branch failure, which would indicate that major limb loss was likely.
13. Mr Deng also came to understand that, because trees are living, shedding organisms, subject to vagaries of weather and climate, it is unrealistic and unreasonable for a tree contractor to offer a warranty of a type one might gain with the purchase of a motor vehicle. In any case, a warranty for a car or similar item would be limited in terms of duration, and extent of cover on various components, whereas the warranty sought by Mr Deng included no limit to its duration.

Jurisdictional requirements

1. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
2. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
3. As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated. The Owners application included reference to extensive correspondence with the respondent, liaison with CJC with respect to mediation, and an offer to Ms Deng to pay the entire cost of the proposed tree pruning.
4. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property or is likely to cause injury to any person.
5. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.
6. The Owners provided copies of paid invoices which itemised roof repairs, including replacement of tiles and ridge caps, on at least four occasions since 2013, necessitated by damage from dropping branches. I am thus satisfied that the tree has caused damage to property on the applicants' land, and the Act is therefore engaged.
7. Given that s 10(a)(i) is satisfied in that the tree has caused damage, there is no need to consider whether it is currently causing damage, likely in the near future to cause damage, nor whether it represents a risk of injury (s (10)(a)(ii)).

Discretionary matters -Section 12

1. In making an order, the Court considers relevant matters in s 12 of the Act.

• The base of the tree is straddling the common property boundary but it is situated principally on the respondent's land (s 12(a)).
• Pruning or removal of the tree requires consent from Council under the Environmental Planning and Assessment Act 1979. The tree is subject to specific DA conditions of consent which enhances protection for both its canopy and root system (s 12(b)). As it straddles the boundary, applications to Council for pruning or other intervention requires consent from the owners of both properties.
• Any removal of live foliage reduces the photosynthetic capacity, and thus the health of a tree. This tree is mature and old, very sensitive to impacts which alter its growing capacity, and therefore any pruning must be prudent and minimal. While the specified pruning, covering removal of deadwood greater than 50mm diameter and reduction pruning of the canopy overhanging the applicants' property by no more than 10%, is broadly appropriate, in support of tree health, less is best. Where deadwood provides habitat for fauna, branches can be reduced in length to reduce risk, but not entirely removed (s 12(b2)).
• The tree contributes to protection from the sun, and from wind, to landscaping, to the amenity of the respondents' property, and to the immediate locality. The tree has historical significance, and is visible from neighbouring houses, and thus has intrinsic value to public amenity (s 12(b3)(c)(e)(f)).
• Being a species indigenous to this area, the tree's flowers and fruit, trunks and branches could be expected to provide food and or shelter for local fauna, and thus would contribute significantly to the local ecosystem and biodiversity (s 12(d)).
• Given the size of the tree, and the likely vast spread of its root system, even though the land is fairly flat, the tree is likely to be providing benefit to soil stability, and, particularly, to absorbing water and reducing run off (s 12(g)).
• With respect to anything, other than the tree, that has contributed, or is contributing, to any such damage, or likelihood of damage, including any act or omission by the applicant (s 12(i)), one must consider that the tree was there first, prior to the Owners' development.
• The Court has published a Tree Dispute Principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the Principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make (Black v Johnson (No 2) [2007] NSWLEC 513).

Conclusions

1. The Owners have provided a comprehensive, organised application. They have satisfied s 10(1)(a), by making a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and have provided evidence such that I am satisfied that the tree has caused damage to their property, thus engaging the Act.
2. This is a significant historic tree, the likes of which are rapidly becoming more scarce. The tree provides many environmental services such as shade, privacy, contribution to landscaping and soil stability, and it makes a major contribution to biodiversity, in terms of habitat and as a food source.
3. Therefore, any intervention with the tree must be prudent and minimal. The pruning specified by the applicant's arborist, constitutes an appropriate solution, and will be the basis of my orders.
4. To clarify, the maximum extent of pruning over the applicant's property must be 10% of the current foliage level. There must be no interpretation of this as maximum reduction of 10% over the entire tree, as this could lead to a reduction of greater than 10% over the applicant's dwellings. Wherever possible, in executing the works, live foliage removal should be minimised. With respect to deadwood removal, it would be appropriate to change the specification to branches above 20mm diameter, rather than 50mm.
5. The cost of the pruning shall be met by the applicant. This flows from the fact that 'the tree was there first', and provides the Owners control of the management of the tree in the longer term. I am not prepared to order regular ongoing maintenance, given that the extent of pruning of live foliage should be minimised, the time between pruning episodes should be maximised, and one cannot know when a need for pruning will next arise. If and when it does, the Owners will again need Mr Deng's co-operation, and he has explicitly ruled out paying for any works. In any case, this is consistent with the Owners original proposal to Mr Deng.

Orders

1. The Orders of the Court are; 1. The application is granted. 2. The tree shall be pruned at the applicants expense in accordance with the specifications of quote STS 1634 from Sydney Tree Solutions, dated 3 February 2019. 3. All pruning work is to be completed by qualified arborists (minimum AQF level 3) with appropriate insurances, and is to comply with AS4373: 2007 (Pruning of Amenity Trees). 4. All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 5. Mr Deng shall provide access to his property, should it be required, for the contracted arborists to undertake these works, upon receipt of at least 48 hours written notice from the applicant, of the date and approximate time works are to commence. 6. If these works are not completed within 6 months of the date of these orders, then Order 2 will lapse. ………………………………… J Douglas Acting Commissioner of the Court

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